Wednesday, July 06, 2005

Oh, Who Will Protect Us From Activist Judges?

I agree with this New York Times Editorial that when people use the term "activist" to describe a judge, they're really saying that judge made a decision with which they disagree. Say the authors:


In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism...How often has each justice voted to strike down a law passed by Congress?

They use this criterion:


because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act 'of great delicacy, and only to be performed where the repugnancy is clear."

The editorial goes on to list the most activist judges on the Supreme Court when measured against this criterion:


  • Thomas 65.63 %
  • Kennedy 64.06 %
  • Scalia 56.25 %
  • Rehnquist 46.88 %
  • O’Connor 46.77 %
  • Souter 42.19 %
  • Stevens 39.34 %
  • Ginsburg 39.06 %
  • Breyer 28.13 %

Apparently the so-called liberals on the court are the least activist.

However, I disagree with the assertion that Democrats generally use the term "activist" to complain about the judiciary. It's a buzzword of the Right -- activist=liberal -- and is really a complaint about issues identified as liberal.

For a good gauge of the thinking on the Right, I go to my parents who are thoroughly and solely immersed in rightwing information dispersement. They do not like liberal activist judges, and of course cite the busing decision of the Supreme Court as such an activist activity. But when it came to the Terri Schiavo decisions, they were supporting the judges who would interfere in or reject long-established state law. It was the issue, not the activism.

If it doesn't matter what political ideology the justices adhere to or who appointed them -- most of the judges who ruled in favor of Michael Schiavo were conservative or appointed by Republicans -- then what the right wants isn't "Strict Constructionist" judges who won't be activist. They want activist judges who will be activist about advancing the rightwing agenda.

And I, a self-described liberal, don't want to protect us against activist judges. I think it is the court's role to be activist and overturn the will of the legislature and interpret the laws. Of course, I think liberal issues promote more equality, freedom, and protection from exploitation, so I support liberal activism. And of course, the rightwing thinks the same of itself.

But even if there is an ideological litmus test, there is still no guarantee that any particular judge will push any particular agenda. However, questions of ideology in the nominating process are warranted, and both sides should stop pretending that they're not.

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